The opinion of the court was delivered by: LYNCH
EUGENE F. LYNCH, UNITED STATES DISTRICT JUDGE
Defendants have renewed their motion to dismiss plaintiff's complaint for failure to state any claim upon which relief may be granted, under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Having considered the briefs and relevant precedent, the Court hereby denies defendants' motion to dismiss this action, but dismisses plaintiff's second claim with prejudice.
For the sake of brevity, the Court omits a lengthy recitation of the facts, and refers parties to the statement of facts contained in the Ninth Circuit's opinion in Dubbs v. CIA, 866 F.2d 1114 (1989) and to this Court's prior opinions in this action rendered on November 27, 1985 and September 3, 1986.
She filed suit against the CIA, its Director and its Director of Security in July 1985, alleging, among other claims, that the defendants denied her the SCI clearance pursuant to an unconstitutional blanket policy of denying such clearances to gay persons. After this Court granted defendants' motion for summary judgment, finding, with respect to plaintiff's blanket policy claim, that there was no genuine issue of material fact with respect to the existence of such a policy, the Ninth Circuit Court of Appeals reversed and remanded this action for further proceedings. See Dubbs, 866 F.2d 1114.
Defendants have moved to dismiss plaintiff's first amended complaint.
This complaint contains the following claims: (1) an equal protection claim based upon the CIA's alleged blanket policy of denying security clearances to homosexuals (Compl., paras. 11-14)
("Blanket Policy claim"); (2) an Administrative Procedure Act claim based upon the CIA's alleged failure its own directives (Compl., paras. 15-19) ("APA claim"); (3) an equal protection claim, based upon another alleged policy of the CIA which discriminates against gay persons by considering "homosexuality and related social conduct as negative factors" while not "similarly viewing heterosexuality and related social conduct" (Compl., paras. 20-22) ("Negative Factor claim"); (4) an alleged violation of plaintiff's first amendment right to associate freely with other homosexuals (Compl., paras. 23-25) ("First Amendment claim"); and (5) a Bivens action against the Director of Security because defendant Director of Security falsely accused plaintiff and another of concealing their homosexuality, in order to deprive her of various constitutional rights (Compl., para. 27) ("Bivens claim").
Generally, in considering a motion under 12(b)(6), the Court is required to believe all well-pleaded facts in the complaint as true, and to make all reasonable factual inferences in support of the complaint. As the Supreme Court stated in the leading case on this type of motion,
in appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to a state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Of course, the Court is not required to accept every statement made in a complaint as true; for example, courts do not accept as true legal conclusions cast in the form of factual allegations if such conclusions cannot be reasonably drawn from the facts alleged, or if such conclusions contradict matters of public record or items appearing in the record of the case. See 5A C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE, § 1357 (2d ed. 1990).
The Court does not accept as true plaintiff's allegation that homosexuals are "members of a suspect class" (Compl., para. 11, at p. 4) to the extent that this allegation would require the Court to apply a heightened standard of scrutiny. This is a legal conclusion, and it may not be reasonably be inferred from the facts alleged in the complaint because the Ninth Circuit, as all parties are well aware, has recently decided that classifications based upon homosexuality are not entitled to heightened scrutiny, but rather are to be tested by a rational basis standard. High Tech Gays v. Defense Ind. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990), rehearing en banc denied, 909 F.2d 375, 1990 U.S. App. LEXIS 12493. A plaintiff cannot, by clever pleading, defeat a motion to dismiss if it is obvious from the face of the complaint that there is no basis for the relief requested; thus, plaintiff cannot decide for herself the appropriate standard of review, if this decision has already been made by a court ...